What is an Independent Children’s Lawyer?

One of the primary objectives of the Court in parenting matters is to determine what the best interests of the children are and to make orders to that effect. In some circumstances, a Court will appoint an Independent Children’s Lawyer (“ICL”) to your matter. An ICL represents your child’s best interests and makes sure that is the focus of any decisions about parenting arrangements.

The Court can appoint an ICL under section 68L of the Family Law Act 1975, or on the application of a child, an organisation concerned with the welfare of children or any other person, to represent and promote the best interests of a child in family law proceedings.

What is the role of an ICL?

ICL’s are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.

Their main roles include:-

• Gathering necessary evidence, including expert evidence from doctors, psychologists or teachers, to be obtained and put before the court.
• facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case.
• acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.
• Making recommendations to the Court as to what Orders should be made to reflect the best interests of the child. These recommendations may be different to what you think your child has told the ICL. This is because the ICL is not required to simply “parrot” the child’s comments, rather they apply their expertise to what the child has said to determine their best interests.

When do parties need an ICL

An ICL is usually appointed by the court upon application by one of the parties where one or more of the following circumstances exist:-

• there are allegations of abuse or neglect in relation to the children.
• there is a high level of conflict and dispute between the parents.
• there are allegations made as to the views of the children and the children are of a mature age to express their views.
• there are allegations of family violence.
• serious mental health issues exist in relation to one or both of the parents or children, and/or
• there are difficult and complex issues involved in the matter.

What information does an ICL consider to determine what is in the children’s best interests?

Whilst each case is different, the ICL will often take the following steps before making any recommendations to the Court:-

• Read all affidavits filed with the Court to date;
• meet with the children. This is usually the case, unless the child is under school age, or there are exceptional circumstances.
• speak to the children’s counsellors, school teachers and principals.
• examine documents from organisations such as schools, Department of Family and Community Services, the Police.
• medical, psychiatric and psychological records of the children and their parents.
• question witnesses, including parents and experts, at the final hearing; and
• arrange for a family report from a family consultant.

Who pays for the ICL?

Legal Aid is responsible for making arrangements for the ICL and will cover some of the costs. However, it is highly likely that the parties will also need to contribute. The Court can make one or both parties pay for the ICL’s costs.

If you have any queries regarding Independent Children’s Lawyers or the role they may take in your Family Law matter, contact Solari and Stock Miranda on 8525 2700 or click here to request an appointment with one of our experienced Family Law Team.

Article written by Nikita Ward
Photo by Artur Aldyrkhanov on Unsplash